Gossip can be fun, but also unlawful?

Gossip can be fun, but also unlawful?

Recently, New York Times reporter Mr. Jacob Bernstein was overheard at a party calling Mrs. Melania Trump a “hooker.” Although he subsequently apologized, the legal question is what legal liability, if any, does either he or The New York Timeshave for his statement? In these times of fast and loose media stories, the question is timely for media professionals and consumers of news.

The First Amendment does not protect all speech. One category of unprotected speech is defamation, an actionable tort. In order to prove defamation, a plaintiff must generally show that an untrue statement was communicated about him or her, that the statement was false, and that such statement injured their reputation in the community. Proof of damage can include, but is not limited to, lost sales for a business. In the case of defamation per se, however, a plaintiff need not show damage because the statement in question is considered harmful on it’s face. Examples of defamation per se generally include calling someone a “bank robber,” a “prostitute,” or both.

Of course, context matters. Where the statements are made under the guise of parody or the words, when read in context, do no mean what they would otherwise mean in isolation, then there may be a potential defense against liability. Barring such context, however, legal liability generally exists. This is true even if you republish the defamatory statement or if the statement was made by one of your employees during the course and scope of their duties to you.

That being said, it is harder to prove defamation if you are a pubic figure. In such a case, you must show that the allegedly false statement was made with actual malice, which means that the person knew the statement to be untrue, or that the person made the statement with reckless disregard of whether the statement was true or false.

Under these guidelines, Mr. Bernstein’s recent statement would be considered defamatory per se. Needless to say, truth is an absolute defense to a defamation claim, so if he could proffer admissible evidence showing his statement to be true, then there would be no liability. Whether his apology absolves him of liability is another question. Defamation law varies by state. In all likelihood, the apology wouldn’t absolve him of liability, but it would be an issue for the jury to consider in determining the amount of compensatory or punitive damages.

Whether The New York Times could be held liable for Mr. Bernstein’s statement is unclear. To be liable, Mrs. Trump would need to show that Mr. Bernstein made the statement within the course and scope of his employment. Courts use various factors to determine this question. One factual issue would be whether Mr. Bernstein was attending the party on behalf of The New York Times, or in his personal capacity. If the former, liability will be more likely. If the latter, less likely, for The New York Times.

Media professionals are under immense pressure to get views of their content, and the quick way to do that is to run salacious eye-grabbing headlines. At the same time, the First Amendment’s protections are not infinite for media professionals. Finding the right balance between offering tantalizing news and also respecting the lines of defamation is a prudent course, but one that may be at risk of attack in today’s fast food news environment.

Stick and stones may break my bones, but calling me gay when I’m not doesn’t — or can it?

Stick and stones may break my bones, but calling me gay when I’m not doesn’t — or can it?

We were all told when we were younger that sticks and stones can break our bones, but that words could not. While it is still true that words cannot break our bones, words can be actionable as defamation under the law. Until recently, it was defamation per se in New York to falsely accuse someone of being a homosexual. This means that all one needed to prove was that the statement was made and that is was false. Special damages were assumed. The recent decision by the Appellate Division, Third Department, in Yonaty v. Mincolla, changed all of that.

In Yonaty, the plaintiff, a male, alleged that a defendant, a female, falsely accused him of being a homosexual. As a result, the plaintiff alleged, he lost his girlfriend. The defendant moved to dismiss the plaintiff’s defamation claim on the ground that he did not allege special damages, such as lost profits or revenues, even assuming he was not a homosexual. The lower court denied the motion because of long standing law in New York, such as in cases like Klepetko v. Reisman, 41 A.D.3d 551, 552 (2d Dep’t 2007), which have held that falsely accusing someone of homosexuality was defamation per se, which means that damage was assumed. Examples of other defamation per se categories include accusing someone of being a felon or having a loathsome disease, such as herpes.

The Third Department in Yonaty ordered the dismissal of the plaintiff’s complaint because he did not allege damages. In so holding, the Court contravened cases like Klepetko. That’s because, these prior decisions were, in the words of the Court, “based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual. In fact, such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a ‘serious crime’  – one of the four established per se categories.”

Nevertheless, the Court’s ruling still leaves the door open for defamation claims arising from false allegations of homosexuality that may, in fact, involve special damages. Assume, for example, that someone falsely claims a boy scout leader is a homosexual. Under the Court’s ruling in Yonaty, the leader may be able to claim defamation if he can show that (1) he is not a homosexual and (2) that he lost his job because of the false statement. The Boy Scouts of America currently prohibit homosexuals from occupying positions of leadership. Thus, the Court’s reasoning accepts that while society has changed in some areas concerning stereotypes surrounding sexual preference, it has not changed in others.